Pháp luật về bồi thường khi nhà nước thu hồi đất tt tiếng anh

This legal regulation was created with the purpose of protecting the lawful rights and interests of land users when the State recovers land, creating a legal basis for land recovery for

MINSTRY OF EDUCATION AND TRAINING MINSTRY OF JUSTICE

HANOI UNIVERSITY OF LAW

NGUYEN VINH DIEN

THE LAW ON COMPENSATION FOR LAND

RECOVERY BY THE STATE

Specialty: Economic law Code: 9380107

Summary of Doctoral thesis on law

HANOI - 2019

The work has been completed at Ha Noi Law University

Supervisors: 1 Assoc Dr Nguyen Quang Tuyen

2 Dr Tran Quang Huy

Reviewer 1:

Reviewer 2:

Reviewer 3:

The Thesis was defended at the Doctoral Thesis Evaluation Council at

University level, meeting at Ha Noi Law University at date / /2019

The Thesis can be found at National Library of Vietnam

and Library of Ha Noi Law University

INTRODUCTION

1 The need for research

In Vietnam, the compensation regime, when the state acquires land, is one of the basic legal provisions of the land law This legal regulation was created with the purpose of protecting the lawful rights and interests of land users when the State recovers land, creating a legal basis for land recovery for national defense and security purposes, socio-economic development for the sake of the nation and the public However, in reality, the application of the compensation regime when the State recovers land faces many difficulties and challenges This is because it affects the practical interests of the people in general and of land users in particular There is not

in all cases that the implementation of the law on compensation when the State recovers land also treats and resolves harmoniously the interests of the state, investors and the interests of owners and occupants of the land to be acquired Disagreement of people having land recovered for compensation, support and resettlement plans when the State recovers land from many causes, including the basic cause is the provisions

of law Current compensation when the State recovers land is not in line with the practical requirements even though this regulation is often amended and supplemented

The 2013 Land Law was promulgated on the basis of reviewing and evaluating the appropriate and unsuitable regulations of the 2003 Land Law to make necessary amendments and supplements However, until now after a period of implementation, the 2013 land law has revealed certain inadequacies, including the provisions on compensation when the state recovers land Land acquisition and compensation when the state acquires land is still a hot issue Disputes and complaints have arisen from the practice of applying the compensation regime when the State recovers land accounting for the largest number (70%) in disputes and complaints about land Complaints about land acquisition and compensation when the state recovers land arise in localities throughout the country In many cases, people whose land is acquired do not believe in the compensation policy that the local authorities apply, do not trust the settlement of complaints at the grassroots level, leading to large complaints to central agencies The content of disagreements between the person whose land is recovered and the competent state agencies is not outside the basic issues of compensation regulations when the State recovers land such as the basis of land recovery, compensation price, types of land to be compensated, supported, and resettled In these disagreements and claims, land compensation is always the most central, sensitive and complicated issue Because all rights of people whose land is acquired are always attached to land, derived from the land and are the basis of other compensation and support benefits On the other hand, land is a valuable asset, a living space, a means of production and is associated with spiritual and religious life, so most of the land users do not want to be revoked, leading to life have been turned upside down, interests have been affected,

and thus aroused opposition to land acquisition Moreover, land-use of people is often volatile; Meanwhile, the state management of land is not strict, the database of land, land registration, and land-attached assets are still limited, which is also the cause of long and complicated complaints It can be said that where there is land acquisition, there are complaints about the land These complaints show that current regulations of law do not meet practical requirements, do not effectively protect the legal rights and interests of people whose land is acquired, and hinder economic development - social, potentially causing political - social instability

The amendments and supplements of the 2013 land law, obviously, still reveal many inadequacies and have not played an important role in ensuring the legitimate interests of people whose land is acquired and ineffective The problem of ensuring the harmonization of interests of the state, investors, and people whose land is recovered, has not "cooled" the lawsuits and has not promoted all the positive effects in ensuring the use of land resources and promote socio-economic development, ensure political security and social order and safety

The above issues pose an urgent need to continue systematically and adequately researching the theoretical and practical laws on compensation when the State recovers land, especially compensation law to assess comprehensively, find the cause of the existence to have effective solutions to contribute to perfecting the law on compensation when the State recovers land and improving the enforcement efficiency in practice With that in mind, the doctoral candidate chooses to study the

topic " The law on compensation for land recovery by the State " as a doctoral thesis in

3 The scientific and practical meaning

In terms of theory: the thesis contributes to clarify some theoretical issues related to land acquisition and the law on compensation when the state recovers land

On that basis, the thesis contributes to strengthening and completing the theoretical

basis for compensation when the State recovers land and the law on compensation when the State recovers land in Vietnam

In practical terms: the inadequacies are pointed out in the current regulations on compensation when the State acquires land and the recommendations of the thesis can

be considered and referenced in amendments, supplements, completing the 2013 land law in the coming time; At the same time, it contributes to improving the efficiency of law enforcement on compensation when the State recovers land from competent state agencies and people whose land is recovered The thesis is a useful reference not only for lawmakers, for the contingent of state officials on land but also as a valuable reference for legal training institutions in our country

4 New contributions of the thesis

- Systematize, supplement, develop and deepen the theoretical basis of compensation when the State acquires land and the law on compensation when the State acquires land in Vietnam

- Clarify the concept and characteristics of compensation when the State recovers land; purpose and meaning of compensation when the State recovers land; identify damages when the state acquires land; benefits and basis of dealing with benefits arising when land is recovered by the state; Factors affecting the formulation and improvement of the law on compensation when the State acquires land

- Assessing the status of land compensation law when the State recovers land in our country today, thereby pointing out the inadequacies of the current law as well as the actual situation of application; causes of inadequacies and limitations

- Provide directions and specific solutions to improve the law and improve the efficiency of enforcement of the law on land compensation when the State recovers

land in our country

CHAPTER 1 LITERATURE REVIEW AND THEORETICAL BASIS

Literature review

Firstly, constructions have been developed with the concepts of land

acquisition, the concept of requisition, expropriation, and expropriation; concept of compensation when the State recovers land, support when the State recovers land; resettlement concept; differentiate and compare compensation when the state recovers land with compensation in civil, labor, and state liability compensation; distinguish between land acquisition and expropriation and expropriation

The above concepts are mainly developed, analyzed and compared by the authors on the basis of analysis and access to land law in 2003, civil law in 2005 However, the current land law in 2013 has enacted and came into effect, the 2015 civil code takes effect from 01/01/2017, so it is necessary to approach and build these concepts on the basis of 2013 land law research, civil code 2015

Secondly, previous researches have studied a number of theoretical issues about

compensation for damages when the state acquires land, which is the theory of compensation when the state acquires land on the basis of the entire land ownership regime, the preeminent nature of our state is that of the people, by the people and for the people; Factors governing the law on compensation when the state acquires land These studies are important for the author to refer to and inherit in the course of his thesis research

However, these researches have not approached thoroughly from the theory of material and property rights to answer the question why land is owned by the entire people, the state is the representative of the owner, the state only granting land use rights to land users for stable, long-term rather than giving land ownership, but why the state must pay compensation when reclaiming land

Thirdly, these researches that identify losses upon land acquisition must be

compensated as actual and visible damages, including damage to the acquired land, damage to properties attached to the acquired land withdrawal, damage due to loss of jobs, damage due to relocation, relocation of houses However, there are actual damages but not currently prescribed by law to compensate such as environmental impacts, cultural space, spiritual life, beliefs, religions of the local communities

Therefore, it is necessary to have further research on land acquisition

Fourthly, these researches show a number of shortcomings in the content of the

law and the reality of the application of regulations on compensation, support, and resettlement when the State recovers land However, most of these works studied the regulations on compensation when the state acquired land and the reality of application under the 2003 land law and documents guiding the implementation of the

2003 land law In 2013, and the implementing instructions were issued in the spirit of inheriting the 2003 land law with many amendments and additions but still revealed

many limitations that need to be further completed

Fifthly, at different scales and levels, many projects have proposed solutions to

improve the efficiency of enforcement and improve the law on compensation when the State recovers land Most of the recommendations were based on the analysis of the limitations of the 2003 land law and the 2003 implementing laws on land law Accordingly, a number of recommendations were agreed and wrote in 2013 Land Law However, 2013 Land Law and documents guiding the implementation of 2013 Land Law were issued but the actual number of disputes and complaints related to compensation when the state acquires land is still very hot and the number of complaints has not decreased This has the potential to take advantage of bad forces to cause political instability, social order, and safety Therefore, this issue also needs to continue researching and proposing complete solutions

CHAPTER 2 THEORY OF COMPENSATION IN LAND ACQUISITION BY THE STATE

AND LEGISLATION ON COMPENSATION FOR

LAND ACQUISITION IN VIETNAM

2.1 Theory of compensation in land acquisition by the state

2.1.1 Concept and characteristics of land acquisition

2.1.1.1 The definition of Land acquisition:

Land acquisition is the decision of the State to reclaim land use rights of a person who is given land use rights by the State when falling into the cases and in the order and procedures prescribed by law

2.1.1.2 Characteristics of land acquisition

Firstly, land acquisition is done by the state Only the state is the only agency to carry out land recovery of land users; Secondly, land acquisition is an imperative administrative decision; Thirdly, land acquisition is carried out in cases prescribed by law, except for these cases, the State may not recover land; Fourthly, the land

acquisition must be made in writing according to the order and procedures prescribed

by law; Fifthly, the consequences of land acquisition will end the land use right, cause

the people who have land recovered certain damages and establish the state's responsibility for these damages

2.1.2 The concept, characteristics, purpose and meaning of compensation when the state acquires land

2.1.2.1 The concept and characteristics of compensation when the state acquires land

* The concept of compensation when the State recovers land:

Compensation when the State recovers land is the state's return of land use right value, compensation for property losses associated with land and other losses to the State people whose land is recovered for use for national defense and security purposes, socio-economic development for the sake of the nation and the public

* Characteristics of compensation when the state acquires land

Firstly, land acquisition is done by the state Only the state is the only agency to carry out land recovery of land users; Second, land acquisition is a compulsory administrative decision; Thirdly, land acquisition is carried out in cases prescribed by law, except for these cases, the State may not recover land; Fourthly, the land

acquisition must be made in writing according to the order and procedures prescribed

by law; Fifthly, the consequences of land acquisition will end the land use right, cause

the people who have land recovered certain damages and establish the state's

responsibility for these damages

2.1.2.2 Distinguish compensation when the state recovers land from a number of other compensation cases, including discrimination between compensation when the state

recovers land and compensation for damage outside contract; with requisition

compensation, expropriation, and with the state's liability under the state's liability law

From the comparison of the above types of compensation, we see that compensation when the state acquires land has not solved the following issues:

(i) The compensation

In compensation for non-contractual damages, compensation for land requisition, and compensation for state responsibility, the compensation to be compensated is in whole and in fact This means the person affected shall have any damages if there are grounds to prove that they will be compensated Meanwhile, damages that are compensated when the State recovers land include damage to land, remaining costs of investment in land, assets, losses of production and business, and damage to expenditures fee of transport Other damages are intangible and other actual losses not compensated, such as loss of income, loss of employment

(ii) The price of compensation

Land use rights when being damaged in the above-mentioned compensation cases are all property and valuable assets of land users In essence, the land use right is damaged when it is requisitioned, requisitioned, or damage is caused by the official on duty and when the state recovers the land without any difference, it loses the land use right However, the price of land and the price of land for compensation are different, which makes no sense Accordingly, if the State buys land, the price of land is determined according to the market price, compensation for land requisition and compensation for state responsibility is also determined at market price but compensation when the State collects land The land is recovered not at market price but at specific land prices

2.1.2.3 Methods of compensation for land when the State recovers land

i) Compensation by new land allocation

This is considered a "land-for-land" method, ie, when the State recovers land, compensation will be made by land to the person whose land is recovered This compensation method brings many benefits to land users

ii) Monetary compensation

This is a common compensation method nowadays This method is applied when the land fund is no longer available for compensation In many cases, monetary compensation will adversely affect the rights of people whose land is recovered and do not best protect the property rights of land users

iii) Compensation by resettlement policy

Resettlement is the compensation made with residential land in resettlement areas

or houses for resettlement to create new houses for people whose land is recovered Compensation by resettlement has advantages such as land compensation method

2.1.2.4 The purpose and meaning of compensation in the case of Land Acquisition by the State

Firstly, the compensation when the State recovers land in order to return the lost

land use rights to the land users, compensate the land users for their labor achievements

and investment results being damage due to land acquisition, thereby contributing to the

implementation of the rights of land users recognized and protected by law

Secondly, the compensation regime, when the State acquires land, not only

guarantees the lawful rights and interests of land users but also contributes to maintaining political stability, social order, and safety, meeting national defense and security requirements

Thirdly, through compensation when the State recovers land, it helps cadres and

civil servants carry out the compensation work to raise the awareness of serving the people, respect and listen to their opinions and feelings

Fourthly, solving the compensation well when the State recovers land

contributes to the implementation of great economic and social policies of the Party and the State through harmoniously resolving the interests of the State and land users

and investors

Fifthly, resolving the compensation well will create a high consensus of the

people, the consensus of the society towards the guidelines and policies on economic development of the party and the state, thereby contributing to Part of increasing the attractiveness of the investment environment in Vietnam

socio-Sixthly, to a certain extent, it can be seen that compensation when the state

recovers land also contributes to the economic restructuring and career change of farmers

2.1.3 Damage when the state recovers land and the problem of solving benefits arising when the state recovers land

2.1.3.1 Damage when the state recovers land

(i) Tangible damage

These are direct visible losses, which are quantitative and easily calculated and identified, including damage to land; damage of the remaining land investment costs; damage to moving remains and graves; damage to properties attached to land; damage due to relocation of properties; damage due to home renovation or repair; damage to cattle

(ii) Invisible damage

These are damages not seen directly, not perceived visually However, these damages not only affect material benefits but also negatively affect the spiritual life of people who have their land acquired and their families Intangible damages that may arise at the time of land acquisition, may also affect long-term life, including loss of life stability, production disruption, lost employment, income is lost or reduced; damage caused by safety corridors when constructing works with safety protection corridors; damage to living space, cultural space, spirituality, religion, religion; Damage to the values of ancient buildings

2.1.3.2 Resolve benefits arising when the state acquires land

When land is acquired, there will be benefits of the state, investors, people whose land is acquired and who do not have land recovered but will benefit from the

land acquisition The harmonious identification and resolution of these beneficial relationships are of great importance in the implementation of the principle of equity among land users, ensuring that the compensation of the land users is compensated It

is worthwhile implementing effectively the process of land acquisition and compensation, ensuring effective land use, promoting the potential and resources of the land, and regulating this added value to compensate the national budget

2.1.4 The theoretical basis for compensation when the State acquires land

2.1.4.1 The Party's lines and views on compensation when the state recovers land

Each time, our party always sets out important policies on land in general and compensates when the state recovers land in particular These policies express the views of the party and are the basis, a prerequisite for the formulation and promulgation of regulations on land in general, and compensation when the state recovers land in particular

2.1.4.2 All-people ownership of land regime

In both theoretical and practical terms, the concept of "land ownership" and the concept of "land use rights" have been formed in our country Land use rights have been separated from ownership rights, whereby the land ownership rights belong to the entire people of whom the State is the representative of the owner and land users are entitled to land use rights Although there is no absolute ownership of all three powers: the right to possession, the right to use, and the right to dispose of land, the land use right is the property of the land users and is associated with the all-people ownership of land regime Therefore, when the State recovers land from land users to use for national defense, security, national and public interests, land users are compensated

2.1.4.3 Protection of property rights of persons with lawful land use rights revoked by the State

Although the land is owned by the entire people, when land-use rights are granted to land users, it is the property of land users with specific powers recognized and protected by law Therefore, the state is only revoked in certain cases As the property of land users, when the State recovers land for national defense and security purposes; For socio-economic development for the sake of the nation and the public, the state must pay compensation

2.2 Legal theory of compensation when the state recovers land

2.2.1 The concept and characteristics of the law on compensation when the state recovers land

2.2.1.1 Legal concept of compensation when the state acquires land

The law on compensation when the State recovers land is a combination of laws issued by the State and ensured by the coercive force of the state to regulate the social relations that arise when the state land acquisition

2.2.1.2 Characteristics of the law on compensation when the State recovers land Firstly, the law on compensation when the State recovers land is governed by the

whole-land ownership regime; Secondly, the basic point of the law on compensation

when the State recovers land is to resolve the conflict between having to protect the land users' property rights over land use rights and having to recover land for defense and security needs, socio-economic development associated with ensuring the

harmonization of interests of entities participating in this legal relationship; Thirdly, the

law on compensation when the State recovers land in our country is built and completed

in the context of frequent changes in land use but ineffective land management

2.2.2 The structure of the law on compensation of land when the State recovers land

For compensation on land when the State recovers land, the legal structure of adjustment is as follows:

Firstly, general provisions on compensation for land when the State recovers

land, including provisions on the scope and subjects to be compensated for land when the State recovers land; regulations on grounds of land acquisition; regulations on the principle of compensation for land when the State recovers land; provisions on

conditions for compensation for land and cases of non-compensation for land

Secondly, specific regulations on compensation for land when the State recovers

land, including provisions on compensation for agricultural land, compensation for non-agricultural land and compensation for some cases such as (i) compensation for remaining land investment costs, compensation for land use rights, (ii) compensation

in case the actual measurement land area is different from the area stated in the land use right papers land, and (iii) compensation for land in the safety corridor when constructing works having protection corridors

2.2.3 Criteria for evaluating compensation law when the State recovers land

Firstly, openness and transparency; secondly, fairness and equality; Thirdly, the purpose of land acquisition must be for the national and public interests; Fourth, to

ensure contributing to social and political stability, meeting the requirements of

socio-economic development, defense, security, and international integration; Fifthly, the

person whose land is acquired must have a life equal or better before the land is

recovered; Sixthly, fully identify damages and damages must be compensated in whole and in fact

2.2.4 Factors affecting the development and improvement of compensation law when the state acquires land

Firstly, Party's viewpoints and guidelines; secondly, the whole-land ownership regime; thirdly, the role of land in Vietnam; fourthly, the process of state management

of land; Fifthly, international integration and reference to the foreign legal system

CHAPTER 3 THE REALITY OF THE APPLICATION OF LAND COMPENSATION LAW

WHEN THE STATE ACQUIRES LAND IN VIETNAM

3.1 General provisions on compensation for land when the State recovers land and practices apply

3.1.1 Scope and subjects of land compensation when the State recovers land

Scope and subjects of compensation are land users whose land is recovered for national defense and security purposes; socio-economic development for the sake of the nation and the public

3.1.2 Grounds for land recovery for national defense and security purposes; socio-economic development for the sake of the nation and the public

Land acquisition for national defense and security purposes; socio-economic development for the sake of the nation and the public on the basis of: the project belongs to the cases of land recovery stipulated in Articles 61 and 62 of the 2013 Land Law; annual district-level land use plans approved by competent state agencies; land use progress of project implementation

The current regulations on urban embellishment and rural residential embellishment projects have not been explained and provided for in the implementing documents, so there are many different interpretations and are easily exploited to recover land private land, affecting the interests of land users, which is prominent to take land to subdivide the sale of land, build houses and commercial areas, services to sell profits to the private

3.1.3 The principles of compensation on land when the State recovers land

Compensation for land when the State recovers land must ensure the following principles:

Firstly, land users are compensated when they meet all the conditions specified

in Article 75 of the Land Law 2013

Secondly, compensation is made by allocating land with the same use purpose

as the type of recovered land, if there is no land for compensation, compensation will

Thirdly, the land price used for calculating compensation is the specific land

price of the type of land to be recovered decided by the provincial-level People's